Jackson v. State of Georgia

Filing 4

REPORT AND RECOMMENDATIONS denying re 2 MOTION for Leave to Proceed in forma pauperis filed by Roderick Bo Jackson. Within 14 days of the date that this Report and Recommendation (R&R) is served, Jackson must pay the full filing fee or his 1 Complaint should be DISMISSED without prejudice. Objections to R&R due by 4/17/2017. Signed by Magistrate Judge G. R. Smith on 4/3/17. (trb) Modified on 4/4/2017 (trb).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

RODERICK BO JACKSON,
Plaintiff,
v.
STATE OF GEORGIA, et al. ,
Defendant.

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CV417-046

REPORT AND RECOMMENDATION
Roderick Bo Jackson brings this 42 U.S.C. § 1983 action,
alleging various constitutional violations related to his confinement at
Chatham County Jail. 1 See doc. 1. He also seeks leave to proceed in

1

Jackson filed his Complaint and IFP motion on state-court forms, captioned for

the Superior Court of Chatham County, Georgia. Doc. 1 at 1, doc. 2 at 1. It is
possible that he intended to file his Complaint in that Court, but the internal
indications are ambiguous. He asserts violations of the U.S. Constitution (“1st
Amendment and 8th, 14th Amendment violations against my constitutional
rights”), doc. 1 at 1, and, as discussed below, he has attached an addendum
addressed to the Clerk of this Court, id. at 42. For the reasons explained below,
he is not entitled to proceed IFP in this Court, so his Complaint is due for
dismissal unless he pays the full fee. If he intended to file his Complaint in the
Superior Court of Chatham County, he may voluntarily dismiss this case under
Fed. R. Civ. P. 41(a), or, as discussed below, take no further action and it will be
dismissed without prejudice.

forma pauperis (IFP). Doc. 2. Although he is indigent, Jackson is
precluded from proceeding IFP by the “three strikes” provision of the
Prison Litigation Reform Act (PLRA). 28 U.S.C. § 1915(g).
The PLRA precludes IFP status for plaintiffs who have “on 3 or
more prior occasions, while incarcerated or detained in any facility,
brought an action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted, unless the prisoner is
under imminent danger of serious physical injury.” 28 U.S.C. §
1915(g). “After three meritless suits, the prisoner must pay the full
filing fee when he initiates suit; his failure to do so warrants dismissal
without prejudice.”

Schmidt v. Rodrigues , 641 F. App’x 913, 916

(11th Cir. 2016) (citing Dupree v. Palmer , 284 F.3d 1234, 1236 (11th
Cir. 2002)).
Jackson discloses only one previous lawsuit in this Court, which
he claims is “still pending.” Doc. 1 at 3 (referring to Jackson v.

Phillips , CV415-127, doc. 1 (S.D. Ga. May 11, 2015) (Complaint)).
Despite his assertion, that case (also brought IFP) was dismissed as
frivolous in 2015. See Jackson v. Phillips , CV415-127, doc. 3 (granting
2

IFP), doc. 6 at 4 (S.D. Ga. Oct. 8, 2015), adopted doc. 9 (S.D. Ga. Nov.
25, 2015). The Report and Recommendation recommending that
dismissal points out that that case was “one of four civil cases Jackson
has commenced in this Court.” Id. at 1 n. 1 (emphasis added). The
other three were also dismissed as frivolous.

See Jackson v. Grogan ,

CV415-079, doc. 3 (S.D. Ga. April 2, 2015) (granting IFP), doc. 7 (Oct.
8, 2015) (recommending dismissal “ sua sponte as legally frivolous or,
at the very least, for failure to state a claim.”), adopted doc. 10 (29,
2015); Jackson v. Ruffini , CV414-250, doc. 3 (Nov. 20, 2014) (granting
IFP), doc. 10 (Oct. 8, 2015)(recommending dismissal as frivolous),
adopted doc. 13 (Nov. 10, 2015); Jackson v. Grogan , CV414-249, doc. 3
(Nov. 20, 2014) (order granting IFP), doc. 11 (Oct. 8, 2015)
(recommending dismissal as frivolous), adopted doc. 15 (Nov. 25,
2015). He alleged in all of his previous suits that he was incarcerated.
Jackson v. Phillips , CV415-127, doc. 1 (May 11, 2015) (Complaint);
Jackson v. Grogan , CV415-079, doc. 1 (April 1, 2015) (same); Jackson
v. Ruffini , CV414-250, doc. 1 (Nov. 17, 2014) (same); Jackson v.
Grogan , CV414-249, doc. 1 (Nov. 17, 2014) (same). Since all four of
Jackson’s prior civil actions in this Court were brought while he was a
3

prisoner, pursued IFP, and dismissed as “frivolous,” he has struck
out. 2

2

Jackson has had another prisoner-IFP case dismissed by this Court.

See
Jackson v. St. Lawrence , CV414-259, doc. 1 (S.D. Ga. Nov. 24, 2014), doc. 3 (Dec.
1, 2014) (granting IFP), doc. 6 (Feb. 23, 2015) (recommending dismissal), adopted,
doc. 8 (April 27, 2015). The recommendation of dismissal does not expressly state
that his claim was frivolous, and it was dismissed without prejudice. See CV414259, doc. 6 (Feb. 23, 2015) (recommending dismissal), adopted, doc. 8 (April 27,
2015) (dismissing without prejudice) . No “magic words” are required to classify a
dismissal as a § 1915(g) strike. Daker v. Commissioner, Georgia Dept. of Corrs. ,
820 F.3d 1278, 1284 (11th Cir. 2016) (citing Rivera v. Allin , 144 F.3d 719, 731
(11th Cir. 1998), abrogated in part on other grounds by Jones v. Bock, 549 U.S.
199 (2007)). But, since the dispositions of Jackson’s other cases are explicit in
finding them frivolous, he has more than three § 1915(g) strikes regardless.
Despite the appearance, therefore, that this case too was dismissed for frivolity or
failure to state a claim, no additional analysis is necessary.
Jackson’s failure to disclose his previous cases, by the way, is not benign. This
Court does not hesitate to invoke dismissal and other sanctions against inmates
who lie to or otherwise deceive this Court.

See, e.g., Ross v. Fogam , 2011 WL
2516221 at * 2 (S.D. Ga. June 23, 2011); Johnson v. Chisolm , 2011 WL 3319872 at
* 1 n. 3 (S.D. Ga. Aug.1, 2011), cited in Brinson v. Townsend , 2015 WL 2378940 at
* 2 n. 4 (S.D. Ga. May 15, 2015). As explained in Ross :
Rule 11(b) of the Federal Rules of Civil Procedure “forbids lying in
pleadings, motions, and other papers filed with the court.” Zocaras v.
Castro , 465 F.3d 479, 484 (11th Cir. 2006). “Rule 11(c) provides for
sanctions concerning misrepresentations made in papers filed with the
court under Rule 11(b).” Id. at 490; see also 5A C HARLES ALAN W RIGHT
& A RTHUR R. M ILLER , F EDERAL P RACTICE AND P ROCEDURE § 1335 (3d ed.
2004) (noting that courts have deemed sanctions appropriate to punish
various forms of party misconduct). Rule 41(b) “expressly authorizes
the involuntary dismissal of a claim for plaintiff's failure to abide by . . .
the Federal Rules of Civil Procedure.” Zocaras, 465 F.3d at 490; State
Exch. Bank v. Hartline , 693 F.2d 1350, 1352 (11th Cir. 1982).
4

Despite his failure to disclose all of his prior cases, Jackson
apparently recognized the risk that he has exhausted his § 1915(g)
strikes. He has attached an addendum to his Complaint, addressed to
the Clerk of this Court, “RE: Civil Action § 1983,” alleging his “life is

In addition, “the power of a court to dismiss a claim is inherent in a trial
court's authority to enforce its orders and ensure prompt disposition of
legal actions.” Zocaras , 465 F.3d at 490; Link v. Wabash R.R. Co ., 370 U.S.
626, 630–631, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Hartline , 693 F.2d at
1352. The Eleventh Circuit approves of dismissals under the inherent
power where a litigant, in bad faith, fails to disclose his prior cases on a

Young v. Sec'y Fla. Dep't of Corr ., 380 F. App'x 939, 940
(11th Cir. 2010) (affirming dismissal under inherent power for plaintiff's
failure to disclose his prior cases on the court's complaint form); see Rivera
v. Allin , 144 F.3d 719, 731 (11th Cir. 1998) (noting that the district court
did not abuse its discretion by dismissing an action without prejudice where
plaintiff “had lied under penalty of perjury about the existence of a prior
lawsuit”), abrogated on other grounds by Jones v. Bock , 549 U.S. 199, 127
S.Ct. 910, 166 L.Ed.2d 798 (2007).
form complaint.

Ross , 2011 WL 2516221 at * 2.
Jackson’s under-oath (doc. 1 at 40) misrepresentation of his prior cases
therefore provides an alternative basis for dismissing his Complaint. Whether or
not Jackson’s failure to fully disclose his prior filings affects the disposition of this
case, it is a continuation of his abuse of this Court’s processes -- misleading filings
are no less wasteful of the Court’s resources than frivolous filings. If the
protections against abusive filing continue to prove ineffective to dissuade
Jackson’s abuses, stronger medicine, including special handling instructions for
any further cases he files, may be necessary. See, e.g., Hurt v. Zimmerman , No.
CV415-260, doc. 3 (S.D. Ga. Oct. 7, 2015) (advising paperless disposition option),

adopted , doc. 5 (Nov. 4, 2015); In re. Matthew Washington , 4:17-mc-003, doc. 2
(S.D. Ga. Mar. 8, 2017).
5

under imminent danger of serious physical injury O.C.G.A. § 42-127.2.” 3 Doc. 1 at 42. Conclusory and general allegations of possible
physical harm are not sufficient to invoke the imminent-danger
exception to § 1915(g)’s three-strikes bar.

See Sutton v. District

Attorney’s Office, of Gwinnett Superior Court, Georgia , 334 F. App’x
278, 279 (11th Cir. 2009) (quoting Brown v. Johnson , 387 F.3d 1344,
1350 (2004) (“[G]eneral assertions [of health risk], even construed
liberally are ‘insufficient to invoke the exception to § 1915(g) absent
specific fact allegations of ongoing serious physical injury, or of a
pattern of misconduct evidencing the likelihood of imminent serious
physical injury.’”)). Accordingly Jackson’s bare assertion of imminent
danger, in the absence of any indication of which facts in his 43-page
Complaint might be intended to support it, is insufficient.

3

O.C.G.A. § 42-12-7.2 is Georgia’s statutory analogue of 28 U.S.C. § 1915(g). It

states “[i]n no event shall a prisoner file any action in forma pauperis in any court
of this state if the prisoner has, on three or more prior occasions while he or she
was incarcerated or detained in any facility, filed any action in any court of this
state that was subsequently dismissed on the grounds that such action was
frivolous or malicious, unless the prisoner is under imminent danger of serious
physical injury.” O.C.G.A. § 42-12-7.2. Jackson’s invocation of the state
exception to the three-strikes bar supports the conclusion, albeit not conclusively,
that he intended to file his Complaint in state court.
6

Jackson has more than exhausted his three strikes under 28
U.S.C. § 1915(g), and has not established entitlement to the
imminent-danger exception. Accordingly, his IFP motion, doc. 2,
should be DENIED . Within 14 days of the date that this Report and
Recommendation (R&R) is served, Jackson must pay the full filing fee
or his Complaint should be DISMISSED without prejudice.
This R&R is submitted to the district judge assigned to this
action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local
Rule 72.3. Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on all parties.
The document should be captioned “Objections to Magistrate Judge’s
Report and Recommendations.” Any request for additional time to
file objections should be filed with the Clerk for consideration by the
assigned district judge.
After the objections period has ended, the Clerk shall submit
this R&R together with any objections to the assigned district judge.
The district judge will review the magistrate judge’s findings and
recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties
are advised that failure to timely file objections will result in the
7

waiver of rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A.
Leasing Corp. , 648 F. App’x 787, 790 (11th Cir. 2016); Mitchell v.
U.S. , 612 F. App’x 542, 545 (11th Cir. 2015).

SO REPORTED AND RECOMMENDED this 3rd day of
March, 2017.

LThIITED STATES MAGISTRATE ILJDGE
SOUThER}4 DISTRICT OF GEORGIA

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